How Copyright Can Be Viewed As Anti-Property

from the removing-rights dept

One of the regular discussions we get into around here is over the question of whether or not things like copyright and patents are really property. The IP lawyers who insist that it's just like property focus on a rather simplistic (and wholly inaccurate) explanation of why it is property: which is that if it's a bundle of rights that can be transferred, then it is property. But that's misleading. Because it mixes up a couple of key elements that make this definition quite inconvenient. The key among them is that those who hold IP rights rarely sell them (yes, it does happen, but it's a rare transaction when it does). Instead, they mostly license the rights. And that's rare with real property. Again, it does happen sometimes, but not very frequently -- and, when it does, it's always represented quite clearly as a rental or a lease rather than a purchase. It's not even thought of in the same framework. So, you have a major difference right there.

And, in fact, there's a reasonable argument that when most of the transactions are licenses but are represented as purchases, it's actually very much against the basic principles of property, rather than for them. Martin points us to a fascinating and thoughtful writeup, by Nicklas Lundblad, originally written in Swedish, but the Google translation is quite readable, that discusses how the recent actions by Amazon to delete purchased George Orwell ebooks on the Kindle demonstrates just how anti-property "licensing" is (my own edit of part of the translation):

What is interesting with the time, however, is that it illustrates an example of a conflict that has not been seen very often - between the copyright and ownership of individual copies of a work which we have purchased legally. As noted in the article above, we would probably flinch [if someone] knocked on the door, courteously explained that the publisher who sold us the last part of Harry Potter no longer wants to provide a paper edition, and that therefore they had brought with him a little gasoline to burn up our copy . Most of us would probably shut the door again, put on a little coffee and [laugh]... [if anyone] would try their hand at this. But in the transition to the digital economy it will make it harder for us to protect our own space and our property, as more and more terminals are now sold [with what is] charmingly called a "kill switch". The iPhone will have, like the Kindle and other terminals: an opportunity to, at a distance, without our consent in the case (but we have certainly agreed to it in any agreement anywhere) change the content of the technologies we use.

And that very fact is incredibly anti-property. The idea that something we believe we have legitimately purchased can suddenly be snatched away from us, at a distance, with no recourse is not property. It's the opposite of property. In the comments to our original post, someone pointed out that for all the copyright maximalists who like to refer to infringement as "theft," Amazon's deletion of 1984 was a lot closer to "theft" in that people who had purchased something suddenly found that it was gone. Poof. That is extremely anti-property, and anti-free market -- and that's a problem:

The original article goes on to note that while a contractual agreement is the cornerstone of the free market, a license agreement built on copyright is quite different. It's built with a very strong imbalance, backed up by government protectionism, that changes the free market structure. Lundblad notes:

The license is like a parody of a contract because the contract coordinating effect been eliminated from the outset by a law which gives one party all the bargaining power.

While I have no doubt that this will upset and anger the folks who believe that copyright is absolutely 100% property, it's a rather compelling explanation of how copyright isn't just not like property, but in many ways is anti-property in that it violates some of the basic tenets of true property and true property rights.

Group ownership rights

Also property can be given to a group. If I want to give my land to a charitable organization this is permissible. However, if I want to give my music to a group of people this is not allowed and is instantly called copy infringement. As long as the individual giving deletes the file there is no reasonable reason that a group of people cannot own an true item of property. This is another point to why intellectual property is not real property in any sense and is anti-property in nature.

Define "property"

There is no doubt that there are significant distinctions between real property and intellectual property. However, I think you have totally overstated the point.

I think Amazon's recent actions are quite troubling, but I am not sure that it calls into question the concept of intellectual property, per se. Instead, it raises red flags about the way in which people enter IP transactions. To that end, I think the Federal Trade Commission should investigate the terms of sales and devise an appropriate means of regulating them. I think Jonathan Zittrain's piece in the NY Times today does a great job laying out the problems with cloud computing and the sort of regulations that can help consumers.

However, I am failing to see how any of this makes intellectual property decidedly "anti property."

Re: Define "property"

"Instead, it raises red flags about the way in which people enter IP transactions. To that end, I think the Federal Trade Commission should investigate the terms of sales and devise an appropriate means of regulating them. "

Just what we need, more regulation.

(GOVERNMENT
If you think the problems we create are bad, just wait until you see our solutions.)

Re: Define "property"

I think you have a good point. People would behave differently if they knew that when the downloaded that song there were big red letters that said this is a lease. This would also expose how many business treat digital goods. If they have to be very open about what you are actually buying, people will either agree or quit buying.

Re: Define "property"

1. Cave

2. Old and gnarly oak root for a club

3. Everything that falls out of the unsuspecting subjects pockets, after, hmm, one of them freak accidents of getting thumped in the head occurs when passing a dark alley (this is of course property by right of finders keepers).

Re: Define "property"

The FTC? Whose interests do you suppose it represents?

The problems with Amazon's actions cannot in any case be addressed via regulation. The law is biased toward copyright holders and law enforcement (as are most judges) and no discussions of policy and principles to address questions of privacy are even taking place at the legislative level. Moreover, when legislators do begin to address the questions,one cannot expect anything like a satisfactory resolution. After all, it is legislators who gave us all the excesses of the Patriot Act, not to mention the Sonny Bono Copyright Extension Act and the DMCA.

IP maximalists...

IP maximalists only want IP to be treated as IP when it favors them. They also want it treated as a licensed good when it favors them. Unfortunately, they actually are having it both ways. They actually do get their cake and eat it too.

I believe ...

that the reason amazon deleted the books because they did not have the proper rights to sell them. As I believe this to be the case, the correct analog would be if you had purchased stolen property, and the stolen property was recovered for the proper owner.

I agree that copyright is anti-property(based on "The license is like a parody of a contract .."), however I do not like the analogy of somebody showing up at the door with gasoline to burn the book. Given that if a police officer arrived at your door to tell you that a copy of something you had purchased had been an illegal copy most people would not laugh and would be willing to turn over their copy.

Re: I believe ...

The problem with this argument is that, in Amazon's case, they didn't -steal- anything. No digital copy of 1984 that Amazon "took back" was ever taken from someone to begin with, nor was the "stolen property" returned to its "rightful owner" to follow the analogue. It was simply stolen from the person who thought they bought it.

Re: Re: I believe ...

Besides which, it wasn't law enforcement that deleted the e-books, it was Amazon. If you get served a court order that says your e-book will be deleted, that would be more like the cop on your doorstep.

Re: Licensing & Buying...

The difference, as Mike stated, is that with IP they represent it as a purchase, but hide in the fine print that you are only actually licensing it. With real property, it is generally clear up front that this is simply a lease and not an actual purchase.

Re: Re: Licensing & Buying...

Not necessarily, in either case...In general, licenses for IP are fairly clear and NOT in the fine print, any more than licenses for equipment are described only in the fine print. You know whether you are buying a car or are leasing it.

Re: Asset Forfeiture

Re: Re: Asset Forfeiture

Easements are purchased. Eminent Domain is paid fair market price. Forfeiture laws can be fought if they are not fair. If I buy something digitally, I have /bought/ it, and no fine print can change the expectations set by the seller.

Re: Re: Re: Re: Asset Forfeiture

It would appear that Amazon breached its contract with End Users:

"Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use."

There are no restrictions, no caveats that would appear to allow Amazon to remove content from your Kindle under the circumstances that arose in the distribution of 1984 and Animal Farm.

Re: Re: Re: Re: Re: Asset Forfeiture

Las, please read more closely:

"solely on the Device or as authorized by Amazon as part of the Service "

Now, go back to the terms of service, and read how Amazon grants authorization, and how it can be revoked or removed. You cannot take a single item in a terms and conditions and quote it without the other relevant parts of the text.

anti-society

all this stuff creates is hoarding, which is a normal biological feature in us creatures. However, what it really is, is anti-society. People prefer to give to themselves rather than give to others in the form of sharing their works.

Re: anti-society

swing and a miss... the point is that with those lenses you can not make infinity number without actually taking the original. That makes the lenses property. The IDEA of the lenses would be the IP and now that we have all thought about the lenses we must all be copyright violators for thinking about their product and in such creating an image of the lenses in our minds. Same with that equipment. When you go to a store you don't lease the music you purchase the music. That is how the transaction is sold to the public. If I have an item I can resell it. A painting, a CD, a software game(well at one point you could). I can NOT resell an idea of yours, software, a song, etc. You're confusing an idea with an item.

Re:

Re:

You cannot copyright an idea...strike one...
The IDEA of a lens is not IP...strike two...
You could easily make the lenses without taking the original, the value was in the lenses, and there was no IP on the lenses...strike three...

three swings and three misses.

Also, note that Mike included patents in his list above, so he clearly was not thinking of "infinite goods," since the vast majority of patents are applicable to hardware. Note also that many, MANY patents are sold (tens of thousands, in fact), as evidenced by the MASSIVE assignment database at the USPTO...

Wow...am I the only one who finds this argument internally inconsistent?

First, what makes IP like copyright and patent a species of property is not just that they are "a bundle of rights that can be transferred", but is that they are rights that can be asserted in rem (against the world) as opposed to in personum (against an individual). To mind, the fact that these rights are also alienable is secondary to that.

Second, and more importantly, the entire argument is predicated on the assumption that individuals can assert property rights over the digital goods they have acquired (ie I bought the e-book, therefore I own it and can do what I want with it). This assumption appears to be based on one's expectations and experiences with tangible goods (specifically personal property like chattel). However, if, as Mike himself has suggested time and time again, digtal goods are infinite goods and are different from tangible goods, how can an individual assert property rights in it. Ironically, isn't this applying scarcity thinking to infinite goods?

Just like content owners can't have it both ways, neither can consumers...

Re:

Re:

> This assumption appears to be based on one's expectations and experiences with tangible goods

The issue here is that this assumption does not come out of a vacuum. The content owners consistently refer to a content transaction as a "purchase" by the consumer. The word "purchase" is normally associated with the transfer of ownership so it is not unreasonable that your average consumer believes it is being used in this sense, but that is not what happens with content.

The content owners make no effort to make it clear that this actually has more in common with a rental than a purchase, but then of course it is in their interest to avoid clarifying this point - they benefit greatly by charging for "purchases" when they are only supplying "rentals" - a level of misrepresentation that in another time and place would be tantamount to fraud!

Re: Re:

Exactly so. An expectation is set through the limitation or accidental misuse of language. Even if this is not the expectation that the seller intends, it has been my experience that the expectation is what the courts look at.

its Scalias Court

Its a far bigger stretch of precedent and basic logic to consider a corporation a person, then it is to consider copyright to be property. Given todays court, I dont think we will win this arguement anytime soon.

Honestly, guys, I live in US for 7 years and I find it laughable. You puff your chest up claiming how you are "will die for your private property", while it is being more and more secretly snatched away from you (the proverbial frog boiling, anyone?) In Russia, we (at least mentally... in Russia, who cares about paper laws?) have pretty simple concept: if I handed you some money for it (in other words, purchased it) and its in my hand (or othwerwise under my control), it's MY FCSKING PROPERTY now, and you can stick all your licensing agreements you know where. It is MINE de facto, period. THAT's how you handle it, not by huffing and puffing.

tangible and intangible property

I am always uncomfortable with the property v. IP discussions, whether from copyright maximalists or minimalists, because they tend to treat tangible property too simplistically. Ownership of tangible property is subject to all kinds of limitations, just as IP ownership is. Ans there are lots of licenses in the world of tangible property -- not just leases, but easements and other kinds of permissions (some mandatory as a matter of law) that allow a non-owner to exercise rights. In fact, the whole "orphan works" problem in copyright might be addressed by importing the concept of "adverse possession" from the realm of real property law.

The problem of licensing versus sale is really a different question then that of the analogy with other kinds of property. It is certainly true that license transactions ought to be better labeled. Renters are seldom deceived into thinking they own the apartment, if for no other reason than that they must pay monthly rent. Owners of IP should be required to indicate more clearly when a transfer is a licensed transaction rather than a sale, and the copyright law probably needs to define more clearly when a sale has occurred, even if it is called a license.

When copyrighted material was always encased in a tangible medium, it was easy to understand the concept of sale, and the analogy with other types of property was clearer. We need a better understanding of how our rules apply or do not apply to genuinely intangible IP, but simply denying any analogy with tangible property is no more helpful than is clinging to that analogy after it has clearer broken down.

what if real property law was actually like current IP law

Without wanting to put ideas is any more lawyers heads, this article made me think a little about what the world would be like if IP like laws were applied to Real Estate property law.

IP law focuses heavily on copyright and 'ownership of design' if you like. Imagine this was applied to the house that you own.

You want to build a new home. You would perhaps look at some display suites or engage a respectable firm to design and build your dream house. Most architects and developers copyright their designs for their range of homes.

If we were to apply IP like laws to this process then basically the firm that came up with the design would have complete control of their design. Just imagine if you wanted to renovate, extend or God forbid, sell you property for a profit.

Under IP like property law, to renovate you would be first required to seek permission from the firm to modify your house to ensure that you did not 'dilute the original design in case causing of harm to the idea or trademark of the original designer'. If you were lucky to get approval for your renovations you would be of course be charged a substantial fee for the priviliedge. If not you could be sued if you went ahead anyway.

Then when time comes to sell your home, any (or perhaps all) profit that you may have made would then have to be handed over to the design firm, after all, you are profiting from their idea are you not?

the CD and "the CD"

@ chris: Interesting paradox, but I can't agree with it. It's not "theft", it's "infringement". You cannot copy a CD, only the data contained on it. This is what necessitated the distinction between property and intellectual property in the first place.

This is also why if someone nicks my BMW, I don't try to sue him for IP infringement, but for car theft.

Anything that is subject to exact copying of the original without the destruction or modification of the original necessarily must have a different set of rules governing it.

Intellectual property may have a similar name, but it is not part of the order of what we understand as "property". It is another animal altogether.

The loss incurred is anybody's guess, which is why the figures in NC infringement suits are so outrageously high.

Mike, as always, you get off on an amusing but totally meaningless tangent. You have stated over and over again that you can't "steal" content, that it is only infringement. Content isn't actually sold, it is licensed. Even a CD that you "purchase" is in reality buying a hunk of plastic and certain rights to the material on it.

I just don't know what the fuss is. For a seemingly intelligent guy, you seem often enough to trip over your own logic.

While I have no doubt that this will upset and anger the folks who believe that copyright is absolutely 100% property

All "property" being a creature of law, copyright is accurately characterized as "100% property". Where the indignation bubbles to the surface here is the unshakable belief by some that only "scarcity", as defined by economics, is the sine qua non of "property". Of course, we do have in the midst of society persons who in my opinion take a more enlightened view.

Property Taxes!

...and if it IS like property...especially if the intended metaphor is real-estate then where's the taxes? Implementing IP taxes would actually remove the need for copyright and patent "terms" because (like with real-estate) hoarding property (especially that which no longer generates enough revenue) costs more than it yields! IP would be handed into public domain once it's no longer profitable enough.

Re: Property Taxes!

For patents, taxes are paid on issuance, at 3.5 years, at 7.5 years, and at 11.5 years. The fees are increasing at each payment point. Approximately 30 to 33% of all patents are abandoned at the 3.5 year tax, presumably because they are not profitable enough. Thus, they are handed into the public domain. Similarly, another 30 to 33% are abandoned at the 7.5 year tax, again, presumably because of lack of profit, again being handed into the public domain.

In addition, when patents are practiced the produced products are also taxed, and since there is supposedly a "monopoly rent" (gag me with a spoon for a term that is more of a joke than some people seem to think intellectual property is), then the tax on products sold with such "rents" are higher than on products without.

Trademarks are alse taxed at periodic intervals in addition to requiring evidence they are being used, otherwise the trademarks are handed back to the public domain.

Great suggestion. You should be glad it is already being implemented for trademarks and patents. I am insufficiently familiar with copyright to know what taxes it might face.